[RPPTL LandTen] Q regarding abandonment

Fri Feb 24 09:26:51 PST 2012

Thanks Cary,

The LL in my hypo wouldn’t presume abandonment if all the rent had been paid in advance because the statute provides that the presumption does not apply if the rent is current – which it always would be in your scenario.  In my hypo, the rent was not current on the day the LL arrived at his presumption (March 5th).

Greg

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Cary Sabol
Sent: Friday, February 24, 2012 12:12 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Q regarding abandonment

I'm going with the tenant on this one.  The abandonment clock starts running once the tenant is in default.  Under the L/L's argument, tenant could pay all their rent in advance, go on vaca, and the L/L could still take back possession.  That doesn't carry any logic.  Furthermore, under your facts, there is no evidence of abandonment (i.e. moving out possession).

I would suggest the L/L immediately give back possession.
 Cary
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From: Greg Hass <GregH at floridarealtors.org>
To: RPPTL Landlord Tenant Committee <landten at lists.flabarrpptl.org>
Cc: Ryan Parker <ryanp at floridarealtors.org>
Sent: Friday, February 24, 2012 11:55 AM
Subject: [RPPTL LandTen] Q regarding abandonment

Happy Friday everyone.

I have a quick hypothetical to pose – please assume the facts are as follows:

-Tenants have paid their February rent in full on the due date of February 1st.
-Tenants leave for a 3 week cruise on Valentine’s Day – they don’t inform the LL of their plans.
-On March 1st, Tenants are still on their cruise and the March rent (due on March 1st) goes unpaid.
-On March 6th, Tenants get back from their 3 week cruise and find that the locks have been changed.
-When Tenants confront the LL he says he recovered possession of the dwelling unit on March 5th because he presumed the Tenants had abandoned.

LL argues he was within his rights to presume abandonment pursuant to 83.59 (3)(c) (see below) because on March 5th, the day he retook possession, no one had seen hide nor hair of the Tenants for over half a month.  In addition, when he arrived at his presumption of abandonment, he checked to see if the rent was current and in fact it was not current since no rent was paid on March 1st.  LL also checked and could find no notice of any intended absence from the Tenants.  Thus, LL argues he met the test for presumption of abandonment.

Tenants on the other hand argue that the clock for presumed abandonment should not have started ticking until the rent was not current.  They argue that they were only really absent for 5 days for purposes of the presumption of abandonment test (March 1st to March 5th) since their rent was current from February 14th through February 29th.

Who wins this fight?

Thanks,
Greg

83.59 Right of action for possession.—
***
(3) The landlord shall not recover possession of a dwelling unit except:
***
(c) When the tenant has abandoned the dwelling unit. In the absence of actual knowledge of abandonment, it shall be presumed that the tenant has abandoned the dwelling unit if he or she is absent from the premises for a period of time equal to one-half the time for periodic rental payments. However, this presumption does not apply if the rent is current or the tenant has notified the landlord, in writing, of an intended absence; or
***

Greg Hass, Senior Counsel

Office of Law & Policy | FloridaRealtors®
7025 Augusta National Drive, Orlando, FL 32822
talk: 407.438.1400, ext. 2421
visit: http://www.floridarealtors.org

The Voice for Real Estate® in Florida

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